Long battle likely in Microsoft’s newest patent infringement suit

Another lawsuit has been added to the increasingly complex patent lawsuit merry-go-round in the smartphone world. This time, Microsoft has sued Barnes & Noble, claiming that its Nook and Nook Color tablets infringe on Microsoft's patents. Manufacturers Foxconn and Inventec were also sued for the same reason. The lawsuits list five user interface patents that Microsoft claims are being infringed by the Android operating system that Barnes & Noble has used on its tablets.

Though some companies, including HTC and Amazon, have signed patent license agreements with Microsoft, the company says that after a year of negotiation, all three of the companies named in the lawsuit were unwilling to agree to a license. This gave Microsoft no alternative but to sue, it says. Keen to underscore that it was left with no choice, Microsoft also stressed that this was just the seventh proactive patent lawsuit that it had initiated in its 36-year history. The company might also be pressured to sue by its licensees; Amazon competes directly with Barnes & Noble, and Amazon pays Microsoft to license patents for its Kindle, so it is unlikely to be happy seeing Barnes & Noble use the same intellectual property for free.

This latest round of lawsuits brings the total number of Android-related patent suits up to 37 since the start of 2010, and these most recent suits are unlikely to be the last. Microsoft insists that licensing is the solution to Android's patenting issues, but so far appears to have had relatively few companies actually take up its offer. The patents have done little to diminish the appeal of the platform to both manufacturers and users alike, a situation that's likely to persist at least until the court system starts handing down some decisions.

The decision to sue the manufacturers—Foxconn and Inventec—also represents a broadening of the Android patent strategy. The manufacturers thus far have largely avoided lawsuits, with patent-holding companies tending to sue the companies responsible for the design and commissioning of the devices rather than the manufacturers themselves.

Success for Microsoft opens the door to injunctions against the import of anything manufactured by those companies that also infringes on the patents and isn't otherwise licensed. This would have consequences for more than just Barnes & Noble; Foxconn builds Android devices for Samsung, Dell, Sony-Ericsson, and Asus, among others. Acting against the manufacturers in this way means that Microsoft could damage the Android efforts of a whole host of competitors.

The five patents (5,889,522, 5,778,372, 6,339,780 (also named in Microsoft's countersuit against Motorola), 6,891,551, and 6,957,233) are unlikely to persuade anyone of the legitimacy of software patenting. While a cursory reading of the patents does suggest that Android is infringing, if these cases actually make it into a courtroom, then the inventiveness and non-obviousness of the patents will no doubt be challenged. But as Microsoft itself has found in the past, the standards to have a patent overturned are high: successful challenges may not be easy to come by. Microsoft is currently fighting to make it easier to challenge patents—a move supported by other software companies but opposed by many inventors of physical goods.

Barnes & Noble might also feel that it has nothing to lose. The company is unlikely to have any relevant patents of its own, and so has no real ability to enter into a cross-licensing agreement with Microsoft; if it licenses the company's intellectual property, the cash will be flowing strictly one way. Only by prevailing in court does the company have any hope of avoiding such an outcome.